<![CDATA[Fertility Law Canada™ at D2Law LLP - Sara R. Cohen, LLB. - Fertility Law Canada Blog]]>Mon, 08 Feb 2016 05:24:54 -0800Weebly<![CDATA[Why I Support Cy and Ruby's Bill - New Legal Parentage Framework in Ontario]]>Tue, 08 Dec 2015 14:00:17 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/why-i-support-cy-and-rubys-bill-new-legal-parentage-framework-in-ontarioFor those of you who haven't heard, Cheri DiNovo (Ontario NDP Party) has brought a private member's bill, Bill 137 (Cy and Ruby's Act (Parental Recognition)).  When it passes, as it should, and which I have no doubt it will, Cy and Ruby's Act will completely revamp the legal parentage framework in Ontario.  I have received many emails and phone calls asking what I think about the bill, so here it is:

If I had to choose whether to accept Cy and Ruby's Act exactly as it is, or not accept the bill at all, I would be willing to take it exactly as it is, no questions asked.  The inequity and discrimination in the current legal parentage system in Ontario, especially as it relates to two-mom families and to a lesser extent, single mothers, needs to be fixed immediately. I have blogged about this here, been invited to speak about this on Global News' Focus Ontario here, met with Ontario policymakers about legal parentage issues in Ontario, repeatedly lectured on the issue, and even once had the opportunity to briefly discuss this with Andrea Horwath. Ontario is desperately in need of a legislative regime that recognizes that a donor is not a parent only by virtue of the donation, allows both parents in two-mom families to be registered directly on the birth certificate when using a known sperm donor, and brings presumptions of parentage outside of hetero-normative family building.  Cy and Ruby's Act accomplishes these objectives.

Further, Ontario has been very fortunate to benefit from a number of excellent and often groundbreaking legal decisions, which Cy and Ruby's Act takes into account. For example, Ontario courts have recognized three plus parent families, and have determined that there is no need for a genetic connection between any intended parent and a child born through assisted reproductive techniques.   This bill appropriately supports such families, and relies on intention-based legal parentage. So far, I'm all for it.

The harder part is the surrogacy piece.  

A little bit of background:

1.  Currently in Ontario,  gestational surrogacy agreements (where the person carrying has no genetic connection to the child) are seen as largely enforceable, while traditional surrogacy agreements (where the person carrying is genetically related to the baby) are unenforceable. This is in line with pretty much all of the more progressive North American jurisdictions that recognize legal parentage through surrogacy;

2. In Ontario and across Canada, third party reproduction (including and especially surrogacy) is seen as so potentially coercive that payment to a surrogate for her services and payment to someone arranging the services of a surrogate mother are prohibited and punishable by up to ten years in jail and/or $500,000 (whether I think it is appropriate policy to criminalize what a person chooses to do with their body, or whether I believe this is how Canada ought to deal with the potential for coercion is better left for another time); 

3.  There is a lot of surrogacy happening within Ontario. As international borders have closed in India, Nepal, and Thailand over the past year or so, the number of international gestational surrogacies happening within Ontario (i.e. international intended parents and Ontario gestational carriers) seems to have greatly increased. This is big business!; and

4. Cy and Ruby's Act equates, or at least conflates, traditional surrogacy with gestational surrogacy. I don't necessarily have an issue with traditional surrogacy, but I am aware that traditional surrogates tend to change their minds more frequently than do gestational carriers.
Within the above context, I am uncomfortable that Cy and Ruby's Act provides that an agreement, including a prototypical form surrogacy agreement provided in the regulations, may be used as evidence of the surrogate's intentions, without requiring that she first obtain independent legal advice (NB: the timing is important - a surrogate takes much risk during the pregnancy and should be appropriately counselled prior to entering into a surrogacy agreement).  

To address this, I respectfully suggest two small, friendly amendments to encourage better and more ethical practices that I believe will ultimately provide more secure families. They are simple:

1. provide that the surrogacy agreement may not be used as evidence of a surrogate's intention unless she obtains independent legal advice about the agreement prior to its execution; and

2. instead of providing a form prototype surrogacy agreement in the regulations (i.e. oversimplifying the process and trying to make surrogacy "one size fits all"), require that surrogacy agreements meet certain criteria to promote well-thought out arrangements and meaningful negotiations and consent.

Of course, one of the difficulties in evaluating the bill as it relates to surrogacy is that its success or failure is largely reliant on a prototype form surrogacy agreement which is not currently available for discussion, as it is to be provided for in the regulations.  On the face of it, a prototype agreement sounds like it could help people without access to legal services. However, given the complexity of surrogacy and the competing interests of the individual parties, it's hard to believe that a form agreement would be sufficient, meaningful, and take into account the intricacies and differences between the many different situations. For example, traditional surrogacy arrangements between friends looks very different than do gestational surrogacy agreements with international intended parents, and that is just the tip of the iceberg (think about what issues we want to consider for someone transferring two or three embryos, or where an intended parent is Hepatitis C positive, or when the surrogate is in the process of separating from a partner or is polyamorous, or when the parents live abroad and the child will not have access to funded public health care and what this may mean for the surrogate, etc.). Although surrogacy is frequently a beautiful, collaborative process, there is no one size fits all solution, and the parties' intentions are rarely, if ever, exactly aligned.   Further, regulations are unlikely to be quickly or frequently updated, so a prototype surrogacy agreement will soon be outdated and cannot realistically stay on top of current best practices (whether these be legal or medical).  These are probably some of the reasons why no other progressive jurisdiction that recognizes surrogacy has government-provided prototype form surrogacy agreement (although a number of such jurisdictions require certain criteria be met, including independent legal representation, psychological counselling and a required exchange of medical information).

Regardless, we won't be able to truly evaluate this prototypical agreement until we see it, but we won't see the regulations until after the bill passes, and my limited understanding of the regulatory process is that we (the public) and our respective MPPs will have little opportunity for meaningful contributions during the regulatory process.

Finally, it is insufficient to offer a surrogate independent legal advice only at the end of the process, after the baby's birth (if independent legal advice is offered at all). It is far more appropriate to offer a surrogate independent legal advice prior to conception, before she has undertaken medical and psychological risk.  Unfortunately, in trying to make surrogacy accessible, I am concerned that the bill inadvertently encourages bare minimum standards as opposed to best practices, and will unintentionally lead to insecurity in the very families it is trying to protect.

So, back to the original question – do I support Cy and Ruby’s Act? Unequivocally, yes.  Ontario cannot continue one more day with such inequities in our families. I sincerely hope, though, that the Ontario government will deal with family building through surrogacy in a way that promotes meaningful and informed consent, respect for women, and best practices. At the end of the day, that is the only way to make truly secure families through surrogacy, and to do it ethically. 


I'm no legislative drafter, but here are what my proposed amendments would look like (I would leave the rest of the bill as is). The reference to independent legal advice for a surrogate could potentially be dealt with in the regulations, but I have included it within the bill itself for the reasons mentioned above.  
<![CDATA[They're Here...Proposed Regulations re Reimbursing Surrogates, Egg Donors, Sperm Donors and Embryos under the Assisted Human Reproduction Act]]>Tue, 23 Jun 2015 21:49:54 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/theyre-hereproposed-regulations-re-reimbursing-surrogates-egg-donors-sperm-donors-and-embryos-under-the-assisted-human-reproduction-act
The Assisted Human Reproduction Act (AHRA) came into force in 2004.  Section 6 of the AHRA prohibits paying a surrogate for her services, and section 7 of the AHRA prohibits purchasing ova, sperm or embryos from an egg donor, sperm donor or embryo donor or from a person acting on behalf of a donor.  Section 12, though, permits reimbursement to the donor or the surrogate, only for reasonable out of pocket expenses incurred, in accordance with the regulations.  However, from 2004 until now, we did not have regulations or even an inkling about what those regulations would look like if drafted...until today.

The Canadian Standards Association (CSA) provided a draft of the proposed regulations.  They are open for public comment until September 15, 2015. You can access them and comment here:

French: http://publicreview.csa.ca/Home/Details/1651

English: http://publicreview.csa.ca/Home/Details/1650

You will need to register and login.

I am certain over the next little while, I will have more to say about the substance of the proposed regulations.  At this point, though, I want to express my disappointment that this is the route taken to regulate fertility law in Canada.

The AHRA has been a failure from the beginning. Canada tried to take control on a federal level and in order to do so, needed to use the federal criminal power.  Huge swaths of the act were struck because they were found to be properly within the provincial, and not federal, jurisdiction.  

Continuing to regulate fertility treatments in Canada in the sphere of criminal law as opposed to health law by the provinces is a mistake, and I think it should be obvious by now.   

"Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians." (para 231, Supreme Court of Canada Reference re Assisted Human Reproduction Act).

Jurisdictions that over-criminalize commercialized third party reproduction leads to situations like Baby Gammy, and the current Australian story of intended parents abandoning one of a set of twins born through surrogacy in India because the parents decided they only wanted one child of a specific gender.  For third party reproduction to be ethical and safe for all parties, we need to make sure we can take care of our fertility needs in our own country.  Spending money adding teeth to legislation which criminalizes intended parents involved in surrogacy or gamete donation is wrong-headed. The same money should instead be spent supporting provincial regulation. Worry more about important things like donor registries, reporting OHSS levels and modernizing parentage laws, and worry less about whether or not a sperm donor is paid for a donation.

What a waste.  What a mistake.

<![CDATA[Twelve Years of  Marriage Equality in Ontario, but Where is the Law Securing Equal Legal Parentage in LGBT Families?]]>Wed, 10 Jun 2015 23:04:06 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/twelve-years-of-same-sex-marriage-in-ontario-but-where-is-the-law-securing-legal-parentage-in-lgbt-families
Today, June 10, 2015, marks twelve years since Ontario became the first province in Canada to recognize same-sex marriages.  While Ontario led the way in 2003, it now lags behind many other provinces, including British Columbia, Alberta and soon Manitoba, in providing legal security regarding parentage in those same families. Ontario has failed to update its legislation to recognize the parentage of children conceived through the use of assisted reproductive technologies in the LGBT community (and sometimes in hetero-normative families, too).  

Lesbian women (or single women, regardless of their sexual orientation) are perhaps the most vulnerable parents in Ontario, especially those who choose to use a known sperm donor.  There are so many good reasons to use an altruistic, known sperm donor.  Where a heterosexual couple uses the help of a known sperm donor to conceive, the mother is legally protected and the father has the benefit of a presumption of paternity by virtue of his relationship to the mother.  However, where a lesbian couple uses a known sperm donor, the carrying mother is legally the mother, but the non-carrying mother has no  presumption of parentage and in fact cannot legally be registered on a birth certificate as a parent without taking further legal steps.  And, the sperm donor, by virtue of his genetic connection to the child, may be legally the father of the child (unless further steps are taken to sever any legal rights or obligations the donor may have. In contrast, no such further steps are generally necessary in a heterosexual family using the known sperm donation).  

If Ontario wants to make the use of altruistic known donors an attractive option, and there are many policy reasons that it ought to, then it needs to change its legislation to clarify that a donor has no rights or obligations to a child only by virtue of a genetic connection and to allow both moms - carrying and non-carrying - to be registered as the child's parents from birth.  Although Ontario had it right in 2003, we are failing in 2015 - let's get back at the forefront of supporting the LGBT community.
<![CDATA[Faith in Humanity]]>Mon, 23 Mar 2015 20:40:50 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/faith-in-humanityAs part of my job, I am often meeting with women who have acted as a gestational carrier (less often a traditional surrogate), when they sign their consent to a declaration of parentage naming the intended parents as the legal parents of the child she just carried, and a declaration of non-parentage re her parentage of this child.  Twice in the past two or three weeks, I have met women who altruistically acted as gestational carriers...and then just kept on giving.  While chatting with each of these women, they both informed me that after delivering the babies, they were pumping milk for babies who for one reason or another did not have access to breast milk (note that this was not for the babies these women carried).  I continue to be truly humbled by the generosity of these women - yes, they are generous with their bodies, but also with their time, energy and their souls.  You want to restore your faith in humanity? Chat with these ladies...
<![CDATA[Thank you Osgoode!]]>Mon, 01 Dec 2014 22:57:23 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/thank-you-osgoodeThis past semester, I had the honour of teaching a weekly seminar about fertility law at Osgoode Hall Law School. Without a doubt, this is one of the most fun (yes, we all have different ideas of fun!) and meaningful experiences that I have enjoyed as a fertility lawyer.  The class was a great opportunity to share ideas with people who are interested in the topic, but come at it with varying perspectives.  We have one student with a strong science background who often reminds us of science's current limits, another who is very concerned about the privacy rights of donors, a student who approaches these issues from a property perspective, and another student who frequently makes use of her strong background in disability rights.  

For any lawyer presented with the opportunity to act as an adjunct professor and teach a law school course - take it! It will remind you of why you went to law school, and make you look at everything you do with fresh eyes.

To my students - thank you! It was truly a pleasure. Stay in touch!]]>
<![CDATA[Three Person IVF in Canada - and why you aren't hearing about it]]>Thu, 06 Nov 2014 19:02:58 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/three-person-ivf-in-canada-and-why-you-arent-hearing-about-it
When I was speaking at the annual meeting of Canadian Fertility and Andrology Society earlier this year, I mentioned the echoing silence in Canada in terms of a debate about the ethics or safety of what is commonly referred to as Three-Person IVF (also referred to as Three-Parent IVF, a term I eschew, or mitochondrial-replacement therapy).  This contrasts greatly to the lively debate within the United Kingdom, both within the House of Commons and within the UK's Human Fertilisation and Embryology Authority (HFEA), as well as the U.S.'s Food and Drugs Administration's panel which has investigated the safety of the process.

Three-Person DNA is a process whereby mitochondrial DNA (mtDNA) is removed from the genetic mother's egg and replaced with mtDNA from a donor's egg.  This egg is fertilized with sperm to create an embryo.  This process potentially has the ability to allow women with certain diseases which are inherited through mtDNA to pass on some of their genetic information without passing on the disease. Currently, about fifty genetic diseases are known to be passed on through a mother's mtDNA.

So, when there is such potential benefit to this therapy, why aren't we even having this discussion in Canada? Because it is very likely illegal.  Pursuant to the always problematic Assisted Human Reproduction Act (the "AHRA"), section 5 (f) prohibits any person from knowingly altering "...the genome of a cell of a human being or in vitro embryo such that the alteration is capable of being transmitted to descendants."  Of course, the entire purpose of Three-Person IVF is to alter the sex cell of the mother so that such alteration is inherited, and not the cell with the inheritable disease. In Canada, this is currently punishable by up to ten years in jail (!), and/or a $500,000 fine.  

This is just another example of how the AHRA is failing us. The potential benefits, safety, and ethical implications ought to be debated and investigated, rather than silenced without so much as a whisper by a law enacted in another time.
<![CDATA[Shana Tova - Rosh Hashana 2014]]>Wed, 24 Sep 2014 12:41:54 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/shana-tova-rosh-hashana-2014
To our family, friends, colleagues, former and future clients,

We wish you all a sweet and fruitful new year! 

Thank you for all the blessings you bring to our lives.  And to our clients, from the bottom of our hearts, thank you for allowing us to be part of the miracle that is building your family. It is our honour and pleasure.

Shana Tova U'Metuka,
<![CDATA[Blawging...facebook and twitter]]>Mon, 30 Jun 2014 14:35:11 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/blawgingfacebook-and-twitterI wanted to invite everyone to take a look at the Fertility Law Canada facebook page.  Although I intend to continue blogging at this address, the facebook page (and twitter, too) serves as a microblog and is updated far, far more frequently.  Both facebook and twitter also serve as a great opportunity to hear what the public is thinking about or how the general public, and not just the fertility community, react to stories.  From my perspective, this insight is invaluable.  I know that I am so caught up in the fertility community (I live, eat and breathe this stuff!), that the perspective from the non-fertility community may sometimes take me by surprise.

Regardless, I look forward to continued discussions, debates and information sharing with you.  Thanks for all your support!]]>
<![CDATA[Justice Czutrin no longer hearing Applications for Declaration of Parentage in Ontario]]>Fri, 10 Jan 2014 01:42:27 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/justice-czutrin-no-longer-hearing-applications-for-declaration-of-parentage-in-ontarioWhile Anatoly was at court this week bringing an application for a declaration of parentage on behalf of an intended parent, we were surprised to discover that the Honourable Justice Czutrin is no longer hearing applications for declarations of parentage in surrogacy and known donor situations.  In December 2013, Justice Czutrin was appointed as Senior Family Judge of the Family Court (read about the recent appointments here).  

While we congratulate Justice Czutrin on his appointment and look forward to appearing before the other judges who hear these matters, we must admit how much we will miss appearing before Justice Czutrin.  In the specialized, controversial and emotionally charged world of legal parentage of children born through assisted reproductive technologies, appearing before the Honourable Justice Czutrin was a true pleasure.  He managed to strike a balance between being forward thinking, realistic and pragmatic, while always, always considering the child at issue. 

Applications for declarations of parentage in Ontario are almost always sealed.  For this reason (and others), we have very little accessible caselaw.  All the more so that Justice Czutrin's specialized knowledge and experience, as well as his viewpoint, will be sorely missed.]]>
<![CDATA[Blogging about a Blog - A Tale of Two Mothers]]>Fri, 03 Jan 2014 03:32:24 GMThttp://www.fertilitylawcanada.com/fertility-law-canada-blog/blogging-about-a-blog-a-tale-of-two-mothersPicture
If you follow me on twitter or facebook, you know that I am very actively reading what is being written about surrogacy, egg donation, sperm donation, embryo donation and IVF in Canada and around the world, and I love to share this information with others who are interested in these topics, too.  Once in a while, I come across something truly exceptional about third party reproduction in Canada that warrants more than a facebook or twitter post.  Tonight I came across a blog that is a must read for anyone who is contemplating surrogacy in Canada (either as a gestational carrier or an intended parent). 

The blog, called A Tale of Two Mothers - Journey through Canadian Surrogacy, is written from both the perspective of the gestational carrier, and the perspective of the intended mother.  It highlights some of the emotional ups and downs and concerns from both points of view.  This blog offers us a rare glimpse into these two women's thoughts, emotions, struggles and relationships. How privileged we are to be offered this insight!